189 P. 903 | Or. | 1920
“Whenever any individual, while lawfully traveling upon any highway of this state or bridge upon such highway, the same being a legal county road, shall, without contributory negligence on his part, and without knowledge upon his part of the defect or danger, sustain any loss, damage, or injury in consequence of the defective and dangerous character of such highway or bridge, either to his person or property, he shall be entitled to recover of the county in which such loss, damage, or injury occurred, compensatory damages, not to exceed the sum of $2,000 in any case by an action in the Circuit Court of such county, or in a Justice’s Court therein, if the amount of damages sued for shall not exceed the sum of $250.”
“When the death of a person is caused by the wrongful act or omission of another, the personal representatives .of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission.”
This law was enacted in 1862, and had never been repealed. Plaintiff urges that the two acts are in pari materia and must be construed together. In the consideration of this question, it may be observed that the two sections are not in any way conflicting or inconsistent, and therefore, the subject of a repeal by implication is not involved. Are the two statutes in pari materia? In United Society v. Eagle Bank, 7 Conn. 456, 468, such laws are defined thus:
“Statutes are in pari materia, which relate to the same person or thing, or to the same class of persons or things. The word ‘par’ must not be confounded with the term ‘similis.’ It is used in opposition to it, as in the expression ‘magis pares sunt quam similes intimating not likeness merely, but identity. It is a phrase applicable to the public statutes or general laws, made at different times, and in reference to the same subject.
*339 “All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also in connection with other statutes on the same subject”: 36 Cyc. 1146.
“Statutes which relate to the same thing or to the same subject are in pari materia, although they were enacted at different times”: -25 R. C. L. 1067.
With these legal principles in mind, let us consider the statutes here involved. The earlier one provided that if the decedent, surviving an accident, would have had a right of action for injuries resulting from the negligence of another, his personal representatives may maintain an action for the death brought about by the same act of negligence. Later, with this statute in mind, the legislature enacted Section 6375, which expressly gives the injured party a right of action against a county for injuries resulting from a defective highway, and thus brings a death, resulting from such injuries, within the purview of Section 380. We conclude, therefore, that defendant’s position is not well taken, and was properly disregarded by the trial court.
“There has been some evidence tending to show that repairs were made subsequent to the alleged injury herein upon the bridge in question. This evidence is not material to the question of the alleged existence of a defective or dangerous condition of the highway at the time of the alleged injury, but is pertinent only to the question of who had control thereof, and should be thus restricted by you.”
Defendant argues that this instruction is erroneous for the reason that if, in fact, it was not a legal county road, but was within the jurisdiction of Jefferson, the circumstance of exercising control thereof would not render the county liable. This is true, and the paragraph of which complaint is made, does not advise the jury otherwise. It must be remembered that there is a sharp conflict as to whether or not the defects were within the corporate limits of the town, and the conduct of the county officers in
“I instruct you further, as a matter of law, that it was the duty of the deceased to travel on the right half of the road, street or bridge. If you find that the deceased was traveling or attempting to travel on the left half of the bridge, or was attempting to cross from the right half of the bridge to the left half of the bridge, then he was not lawfully traveling on the highway, and cannot recover anything. It is immaterial whether such crossing or attempting to cross to the left half of the bridge, if you find that he did so cross or attempt to cross, contributed to the injury or not. He was, under such circumr stances, not traveling lawfully, and under the laws of this state the county is not liable if injury resulted.”
We have examined the evidence carefully and have been unable to find any testimony in the record upon which to base such an instruction, and it was therefore properly refused: Bowen v. Clarke, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625).
The same may be said regarding requested instructions Nos. 7 and 11, the refusal of which is assigned as error.
The motions for a judgment of nonsuit and for a directed verdict were properly denied.
We find no substantial error in the record, and the judgment is affirmed. Affirmed.